The Mills regime sets out a two-stage test for an accused seeking production of a private record of a complainant or witness.
At the first stage, an accused must persuade the trial judge to order the record holder to produce the information to the court for inspection in the absence of the parties.
At the second stage, the trial judge, after reviewing the record, must decide whether to produce the record, or any part of it, to the accused.
The First Stage: The Trial Judge Determines Whether to Order Production of the Private Record to the Court for Inspection in the Absence of the Parties
There are two preliminary considerations to keep in mind at the first stage of the Mills regime:
1) The submissions of defence counsel and the trial judge’s determination as to whether to order production to the court for inspection in the absence of the parties take place without defence counsel or the trial judge reviewing the record; and
2) There is nothing automatic about the first stage. The complainant or other witness has a privacy interest in the record that prevents anyone, including the judge, from reviewing its contents in the absence of lawful process. If an accused does not satisfy the legal test for production at the first stage, there will be no second stage and the trial judge will dismiss the application without ever taking possession of the record from the record holder.
In order to meet the legal test for production at the first stage, the trial judge must be satisfied that the record is likely relevant to an issue at trial or to the competence of a witness to testify and that the production of the record is necessary in the interests of justice (s. 287.5(1)).
The Supreme Court of Canada in R. v. Mills,  S.C.J. No.68 confirms that the standard of “likely relevance” refers to “a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify…” (see paras. 124 and 127, where the Court confirms that the definition of “likely relevance” set out in R. v. O’Connor,  S.C.J. No. 98 still applies under the Mills regime).
With respect to the meaning of “an issue at trial”, the Court in O’Connor, supra, states at para. 22:
….we are referring not only to evidence that may be probative to the material issues in the case (i.e. the unfolding of events) but also to evidence that may be probative to the credibility of witnesses and to the reliability of other evidence in the case....
In order to determine whether the production of the record is “necessary in the interests of justice”, the Code directs the trial judge to balance the competing interests of the accused and the complainant or witness. Section 278.5(2) states:
In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account:
(a) the extent to which the record is necessary for the accused to make a full answer and defence;
(b) the probative value of the record;
(c) the nature and extent of the reasonable expectation of privacy with respect to the record;
(d) whether production of the record is based on a discriminatory belief or bias;
(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;
(f) society’s interest in encouraging the reporting of sexual offences;
(g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and
(h) the effect of the determination on the integrity of the trial process.
The following comments from the Court in Mills, supra, at para. 94, provide further guidance to a trial judge when weighing the competing interests at stake:
…Full answer and defence will be more centrally implicated where the information contained in a record is part of the case to meet or where its potential probative value is high. A complainant's privacy interest is very high where the confidential information contained in a record concerns the complainant's personal identity or where the confidentiality of the record is vital to protect a therapeutic relationship.
A trial judge making a determination at the first stage must also have regard to the following comments from the Court in Mills, supra, beginning at para. 137:
... courts must as a general matter ensure that the accused can obtain all pertinent evidence required to make full answer and defence... Where there is a danger that the accused's right to make full answer and defence will be violated, the trial judge should err on the side of production to the court.
….If in doubt, the interests of justice require that the judge take that step.
The Second Stage: After Reviewing the Record, the Trial Judge Determines Whether to Order Production to the Accused
If the trial judge is satisfied that the record should be produced to the court, the trial judge will review the record in the absence of the parties. The trial judge will then decide whether to produce the record, or part of it, to the accused (s. 278.6(1)).
The test for production to the accused at the second stage is the same as the test for production to the court at the first stage, as are the factors that the trial judge must consider when weighing the competing interests at stake (ss. 278.7(1) and (2)).
The only practical difference in the application of the test at the second stage is that the trial judge has the benefit of reviewing the contents of the private record against the backdrop of the evidentiary foundation for the application put forward by the accused.
The trial judge has the authority to place restrictive conditions on the production of the private record to an accused in order to minimize the prejudice to the privacy and equality rights of the complainant or other witness (s. 278.7(3)). For example, the trial judge may redact irrelevant information and place restrictions upon who may possess the record and for what purposes.
After reviewing the private record, the trial judge may hold a hearing to invite further submissions from the parties (s. 278.6(2)).
In most cases the trial judge will make the second stage determination without any further input from the parties. As such, an accused’s written application and oral submissions at the first stage should review the tools that are available to the trial judge at the second stage to minimize prejudice to a complainant's privacy and equality interests should production be ordered.
The next post in this series will examine the evidentiary foundation for production under the Mills regime.
· An application for production must be made in writing to the trial judge (ss. 278.3(1) and 278.3(3)).
· The application must set out “particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record” (s. 278.3(3)(a)).
· The application must also set out “the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify” (s. 278.3(3)(b)).
· Section 278.3(5) requires the accused “to serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least 60 days before the hearing… or any shorter interval that the judge may allow in the interests of justice”. [Note: The time frame was changed from 14 days to 60 days when Bill C-51 came into force on December 13, 2018].
· In practice, it is helpful to schedule the hearing for the application well in advance of the trial date. Further defence investigation may be necessary as a result of any information produced at the hearing.
· Section 278.3(5) also requires the accused to “serve a subpoena issued under Part XXII in Form 16.1 on the person who has control of the record at the same time as the application is served”.
· The hearing will take place in camera (that is, the hearing will be closed to the public and the press) (ss. 278.4(1) and 278.6(2)).
· The publication of any information relating to the application is prohibited subject to the exception set out in s. 278.9.
[Last updated: February 13, 2019]